Pursuit, 11th felony yields 80-year prison sentence

Case Number: 02-17-00165-CR

Judge: Wade Birdwell

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Don Schnebly

Defendant's Attorney: Josh P. Norrell

Description: A grand jury indicted Williams for evading arrest or detention while using a
vehicle. For sentence-enhancement purposes, the indictment alleged that he
had several prior felony convictions. Williams pleaded guilty and judicially
confessed to the offense. He also pleaded true to the indictment’s enhancement
allegations.3 The trial court found him guilty, found the enhancement allegations
true, and conducted a jury trial for the assessment of his punishment. After
receiving the parties’ evidence4 and arguments on punishment, the jury assessed
eighty years’ confinement. The trial court sentenced Williams accordingly, and
he brought this appeal.
3Williams’s enhanced punishment range was confinement from twenty-five years to ninety-nine years or life. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2017).
4Williams stipulated to many prior convictions. The jury received evidence about those convictions, about the circumstances of the evading arrest offense (including a twenty-mile pursuit of Williams by the police), and about other facts. Williams did not testify.
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The Forfeiture of Williams’s Complaints
In two issues, Williams argues that the State made several improper
statements during its closing argument on his punishment. He contends that the
statements improperly induced the jury to reach its sentence based on
expectations of the community, improperly commented on his decision to not
testify, and injected new and harmful facts into the case by speculating about
details of his prior convictions. He also asserts that the cumulative effect of the
statements amounts to a violation of due process.
Williams acknowledges that he did not object to any part of the State’s
closing argument in the trial court but argues that he did not need to object. The
State contends that Williams’s failure to object in the trial court forfeits his
complaints for our review. We agree with the State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely objection that states the grounds for the desired ruling if they
are not apparent from the context of the request, objection, or motion. Tex. R.
App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015),
cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on
the request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013). We
cannot not address the merits of an issue that has not been preserved for
appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
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The Texas Court of Criminal Appeals and this court have consistently and
repeatedly applied rule 33.1(a)’s preservation requirements to jury arguments.
See, e.g., Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010), cert.
denied, 562 U.S. 1142 (2011); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007) (“To preserve error[,] . . . a defendant must pursue to an adverse
ruling his objections to jury argument.”); Threadgill v. State, 146 S.W.3d 654, 667
(Tex. Crim. App. 2004) (“Appellant did not object to the prosecutor’s argument
and therefore failed to preserve error.”); Isbell v. State, Nos. 02-14-00124-CR,
02-14-00125-CR, 2017 WL 3526339, at *5 (Tex. App.—Fort Worth Aug. 17,
2017, no pet. h.) (mem. op. on remand and on reh’g, not designated for
publication) (“Absent an objection to jury argument at trial, nothing is presented
for review.”); Montez v. State, No. 02-16-00175-CR, 2017 WL 2807395, at *5
(Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not designated for
publication) (“Because Montez did not object to the State’s argument regarding
the effects of K-2, his complaint on appeal is forfeited.”); Hopper v. State, 483
S.W.3d 235, 237 (Tex. App.—Fort Worth 2016, pet. ref’d) (“Hopper did not object
to the second argument and, therefore, forfeited any error arising from this
argument by the prosecutor.”). Indeed, this court and other intermediate courts
have recognized that the preservation requirements apply even when the State’s
argument is egregious. See Morris v. State, No. 02-16-00171-CR, 2017 WL
2590569, at *5 (Tex. App.—Fort Worth June 15, 2017, pet. ref’d) (mem. op., not
designated for publication) (“[L]ike all complaints that are subject to preservation,
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a defendant must object each time an improper argument is made, or he forfeits
his complaint, regardless of how egregious the argument.”); see also Cruz v.
State, No. 08-14-00058-CR, 2016 WL 3194924, at *3 (Tex. App.—El Paso June
8, 2016, pet. ref’d) (not designated for publication) (“[The preservation rule]
applies even if the argument is egregious and an instruction to disregard would
not have cured the harm caused by the improper argument.”).
Williams recognizes that rule 33.1(a)’s preservation requirement is a hurdle
to his ability to pursue his complaints, but he relies on three cases to contend
that we should depart from the general preservation rule in this appeal. Those
cases do not persuade us to do so.
First, Williams cites the decision of the Waco court of appeals in Campbell
v. State, 900 S.W.2d 763 (Tex. App.—Waco 1995, no pet.), to argue that “under
certain circumstances, a jury argument comment on a defendant’s failure to
testify can rise to the level of fundamental error.” There, Campbell argued that
the State had improperly commented on his failure to testify during closing
argument. Id. at 765–66. At trial, Campbell’s counsel had failed to object to any
of the statements. Id. at 766. The Waco court acknowledged the general rule of
preservation but relied on an opinion by the Texas Court of Criminal Appeals to
state that an “exception to the general rule exists where the argument is
manifestly improper, violates some mandatory statute, or injects some new fact
harmful to the defendant’s case.” Id. at 767 (citing Willis v. State, 785 S.W.2d
378, 385 (Tex. Crim. App. 1989)).
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After the decision in Campbell, however, the Texas Court of Criminal
Appeals denounced this exception and overruled the cases that had recognized
it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520
U.S. 1173 (1997). The court held that a defendant’s entitlement “not to be
subjected to incurable erroneous jury arguments is . . . forfeited by a failure to
insist upon it.” Id. The court concluded that “a defendant’s failure to object to a
jury argument or a defendant’s failure to pursue to an adverse ruling his objection
to a jury argument forfeits his right to complain about the argument on appeal.”
Id.; see Estrada, 313 S.W.3d at 303 (stating that in Cockrell, the court “overruled
the exception discussed in Willis”); Ortiz v. State, Nos. 14-01-00556-CR, 14-01
00557-CR, 2002 WL 1041054, at *7 (Tex. App.—Houston [14th Dist.] May 23,
2002, pet. ref’d) (not designated for publication) (“In Cockrell v. State, the Court
of Criminal Appeals overruled . . . any . . . cases allowing an exception to normal
error-preservation rules for improper and incurable jury argument.”). Thus,
because the Texas Court of Criminal Appeals overruled the exception recognized
in Campbell, Williams misplaces his reliance on that decision.
Second, Williams relies on the Texas Court of Criminal Appeals’s decision
in Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014). He contends that in
Grado, the court “re-examined its requirements for error preservation.” In that
case, the court held that a defendant’s right to be “sentenced by a judge who
considers the entire range of punishment” is a waivable-only right that is not
subject to procedural default. Id. at 737. The court discussed three categories of
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rights that affect error preservation requirements: (1) absolute rights that a
defendant cannot forfeit by inaction, (2) waivable-only rights that a court must
implement unless a defendant has expressly waived them, and (3) rights that a
defendant forfeits by inaction. Id. at 739 (citing Marin v. State, 851 S.W.2d 275,
278–79 (Tex. Crim. App. 1993)). The court described the first two categories as
“narrow exceptions” to rule 33.1(a)’s preservation requirements and held that
under the “unique circumstances” presented in that case, the right to be
sentenced by a court that considered the entire range of punishment was a
category-two right. Id.
Grado’s holding does not help Williams. In Cockrell, the court classified a
defendant’s right to not be subjected to improper jury arguments as a category
three forfeitable right. 933 S.W.2d at 89; see also Grado, 445 S.W.3d at 741 &
n.29 (citing Cockrell and explaining that the right at issue in Grado was
“fundamentally different” than the forfeitable right discussed in Cockrell). The
court has never departed from this holding, and we have applied it in many
cases.
Third, Williams relies on our decision in Hernandez v. State, 508 S.W.3d
737 (Tex. App.—Fort Worth 2016, pet. granted). There, during closing argument,
the State used a racial pejorative to which Hernandez timely objected. Id. at 743.
The trial court first overruled the objection, then sustained the objection and
instructed the jury to disregard the comment. Id. Hernandez did not request a
mistrial, but he complained about the improper argument in a motion for new trial.
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Id. We recognized that under rule 33.1(a), a defendant must preserve a
complaint about an improper jury argument, but we held that Hernandez had
done so “both at trial and in his motion for new trial.” Id. at 743 & n.20, 747.
This case is distinguishable from Hernandez. Here, Williams made no
objection to the State’s argument during or after the trial—he made no attempt to
satisfy rule 33.1(a)’s preservation requirements. We therefore conclude that our
holding and reasoning in Hernandez does not avail Williams.
For all of these reasons, without reaching the merits of Williams’s issues—
see Ford, 305 S.W.3d at 532—we hold that he forfeited his complaints about the
State’s closing argument by not objecting to the argument in the trial court. See
Tex. R. App. P. 33.1(a); Archie, 221 S.W.3d at 699; Hopper, 483 S.W.3d at 237.
We overrule both of his issues.

Outcome: Having overruled both of Williams’s issues, we affirm the trial court’s
judgment.

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